Within hours of former FBI Director James Comey’s dismissal by President Donald Trump, Senate Democrats and cable commentators pointed out that Trump had fired three federal prosecutors overseeing investigations into members of his administration.
Arguments to this effect were widely circulated on Twitter, from political and parody accounts.
The line is both pithy and effective, but it also misconstrues the reality of the dismissals.
The most important, and most overlooked, aspects of the Yates and Bharara firings were they both left the president with no choice but to fire them.
In Yates’ case, she refused to fulfill the U.S. Department of Justice’s obligation to defend executive orders issued by the president. As liberal legal commentators have argued, the proper course for her in light of the department’s best traditions was to resign if she didn’t believe she could defend the order.
Actively inhibiting the implementation of the president’s policy, and refusing to step aside, left Trump no choice but to fire her. Yates made a choice to force the president’s hand, knowing full well what would ensue.
Bharara followed a similar trajectory. The president asked for the resignations of dozens of Obama-era U.S. attorneys in March. Though the abruptness of the order was widely criticized, all prosecutors complied with the request — except Bharara. The reasons for Bharara’s reticence are still unclear. The administration had asked him to stay on as U.S. attorney for the southern district of New York (SDNY) during the transition, and Bharara may have felt the president was improperly reneging on a promise. His office is also leading an investigation into suspicious stock trades made by Health and Human Services Secretary Tom Price. Therefore, Bharara may have felt it was inappropriate for him to leave the office as the probe unfolded.
Even in Bharara’s absence, the office’s professional staff of more than 200 prosecutors is well equipped to continue its investigation of Secretary Price. SDNY’s interim U.S. attorney, Joon H. Kim, is a longtime Bharara confidant and served as his top deputy, making him uniquely qualified to assume supervision of ongoing investigations. It seems supremely unlikely that the Price probe would be compromised without Bharara’s leadership.
Like Yates, Bharara refused to resign. He forced a confrontation he knew he would lose. Neither he nor the former acting AG were disinterested public servants fired by an angry president in the normal course of their duties. They both chose to actively resist a legitimate request. They knew what they were doing. Their calculated choices simply aren’t analogous to the Comey dismissal.
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